The answer is quite surprising.
Let me see if I can nutshell this.
In 1916 Congress banned the products of child labor in an attempt to cut off the market for the products of child labor. In the previous two decades, there had been a growing movement to abolish child labor altogether. Then, in 1918, the Supreme Court struck down the law saying that Congress had overstepped the bounds of what it could regulate. In this case, it couldn’t regulate the products of child labor, but it could regulate things like medicine, alcohol, etc. The interesting bit, though, is that the Court said the products of child labor “are of themselves harmless.” Congress then tried to do an end-run around this argument and passed a second law that taxed the products of child labor. However, the Court once again struck down the law. Here’s what they said in that decision:
To give such magic to the word ‘tax’ would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States.
That’s a pretty bold statement. OK, not bold at all. It’s hyperbole dressed up as a logical argument, designed to give the Court a reason to strike down the second attempt to do away with child labor. It was shameful. One has to wonder how many children were forced to work in textile mills for the next two decades. Shameful, indeed.
What does all this have to do with the health care act passed by Obama, you’re probably wondering? Our current Supreme Court is engaging in the same hyperbole disguised as logical argument:
“So can the government require you to buy a cellphone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?” asked Roberts.
Conservative Justice Antonin Scalia picked up on the argument, long made by opponents of the law, that Congress next could require that everyone purchase broccoli. “Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli,” he said.
This is the same bogeyman from almost one hundred years ago: if this law is allowed to stand, there are no limits to what Congress could to do regulate interstate commerce and the sky will fall.
By the way, the broccoli analogy is just plain dumb. When I consume broccoli, it doesn’t make the purchase of broccoli more costly to you, as all the millions of uninsured in the US do. And, broccoli is not a vital, life preserving item. Frankly, the argument that Roberts and Scalia put forth shows they have no integrity, they will put forth arguments they know to be ridiculous, merely to win the argument. Shameful.